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Officers Denied Immunity For Arresting Protester
Legal World News |
2008/04/23 07:51
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The 10th Circuit denied immunity to five police officers in Albuquerque, N.M., who allegedly arrested a University of New Mexico faculty member during an antiwar protest, simply because he was part of a large basket containing a few bad eggs.
The court ruled 2-1 that John Fogarty may proceed with a lawsuit accusing the officers of targeting him without probable cause and using excessive force to arrest him during a March 2003 demonstration against the U.S. war in Iraq.
The protest began on the UNM campus and spread to city sidewalks and streets, with between 500 and 1,000 demonstrators voicing their opposition to the war.
Fogarty and a friend joined a drum circle that was play(ing) a really nice samba, Fogarty claimed. But police accused the drummers of inciting the crowd and making it more difficult to clear the streets.
Capt. John Gonzales told officers to remove the drums, a statement some interpreted as a direct order to arrest the drummers, Fogarty included. The plaintiff said he was already off the street when officers pelted him with an unknown projectile and arrested him.
Officers allegedly took the handcuffed Fogarty near an area with lingering tear gas, causing Fogarty to suffer an acute asthma attack. He also claimed to have torn a tendon in his wrist during the ordeal.
The majority refused to dismiss Fogarty's claims, ruling that he had provided enough evidence to survive summary judgment at this stage.
The Fourth Amendment plainly requires probable cause to arrest Fogarty as an individual, not a member of a large basket containing a few bad eggs, Judge Lucero wrote. In other words, that Fogarty was a participant in an antiwar protest where some individuals may have broken the law is not enough to justify his arrest. |
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Federal judge dismisses Katrina fraud claim
Legal World News |
2008/04/22 08:01
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A federal judge on Monday dismissed claims of fraud against State Farm Insurance by a Mississippi couple who claimed that the company denied their insurance claim for damage from Hurricane Katrina based on bad faith and fraud. US District Judge L.T. Senter, Jr. rejected the claim, writing:
Plaintiffs allege that State Farm committed actionable fraud in the handling of the plaintiffs' claim. Plaintiffs primarily rely on their contention that State Farm ordered two engineering reports from Forensic in an effort to dishonestly minimize its liability to the plaintiffs rather than for any legitimate reason. ...
Plaintiffs contend that State Farm, acting through Renfroe and Forensic, deliberately underestimated the amount of wind damage the insured property sustained in order to minimize its liability under the plaintiffs' homeowners policy. While this allegation, if sustained, would support a finding of bad faith, it is not sufficient to support an allegation of fraud. Fraud requires reasonable reliance on a misrepresentation, and the plaintiffs have not relied upon State Farm's evaluation of their claim. Indeed plaintiffs have brought this lawsuit in an effort to establish that State Farm has underestimated the wind damage to the insured property. Although plaintiffs may prevail on the merits of their claims for additional policy benefits and other extracontractual damages, including punitive damages if they establish bad faith on the part of State Farm or its agents, in the absence of any evidence that the plaintiffs relied upon State Farm's damage assessment I can see no basis for a claim of fraud.
Thomas and Pamela McIntosh filed the lawsuit against State Farm after the company refused to pay for most of the damage to their home, which State Farm concluded was caused mostly by flood damage from the storm surge.
State Farm used E.A. Renfroe amp; Co. to inspect the McIntosh's home, and the couple also alleged that Renfroe aided and abetted State Farm's fraudulent misconduct and that the company breached its duty of loyalty to the plaintiffs. Senter dismissed the aiding and abetting claim as he concluded there was no underlying fraud, and also dismissed the breach of duty claim. |
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Class Says Blockbuster Invades Privacy
Legal World News |
2008/04/10 08:06
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nbsp; nbsp;nbsp; Blockbuster invaded customers' privacy by sending information about their movie rentals to the Facebook Web site, according to a federal class action. Plaintiffs say Blockbuster's cooperation with Facebook's Beacon system violates the Videotape Privacy Protection Act, which Congress passed after a newspaper obtained a list of 146 movies Robert Bork or his family had rented, and publicized it during Bork's failed nomination to the Supreme Court.
nbsp; nbsp; Facebook launched Beacon in November 2007, in cooperation with 44 other Web sites, that automatically fed information to Facebook, plaintiffs say. This was not just for social purposes, but was a core element in the Facebook Ads system for connecting businesses with users, plaintiffs say.
nbsp; nbsp; Blockbuster sent information about movie rentals to Facebook, which added it to members' Facebook profile, something like this: 'Preston added Lord of the Rings to his queue on Blockbuster.com,' the complaint states.
nbsp; nbsp; This was an opt-out system, in which users had to check a box to prevent the information from being distributed, plaintiffs say.
nbsp; nbsp; Faced with furious criticism about privacy invasion, Facebook founder Mark Zuckerberg was forced to issue an apology, in December, which is quoted, apparently in full, in this filing. To this day, however, Facebook still receives personal identifiable information from participating Web site with the Beacon javascript, whether the Facebook member has chosen to distribute their information or not, it claims.
nbsp; nbsp; Plaintiffs say that if users did not check the opt-out box quickly enough, their information would be sent to Facebook, and that along with a picture of the individual who purchased the movie and a Blockbuster ad. They say that Blockbuster did not notify online customers that this information was being sent to Facebook until sometime in December 2007. However, the summary is immediately sent to a user's Facebook profile even before the user has a chance to decline the distribution of he/her personal identifiable information - as long as you have not marked the privacy feature telling Blockbuster never to send summaries. To this day, Blockbuster online victims remain unsuspecting victims, the complaint states.
nbsp; nbsp; Blockbuster, which has 64 million active users, is the 7th most popular site on the Web, the complaint states.
nbsp; nbsp; Represented by lead counsel Jeremy Wilson with The Corea Firm of Dallas, plaintiffs demand $2,500 for each violation of the Videotape Privacy Protection Act, and punitive damages. |
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Two Attorneys Emerge in Detroit Mayor Case
Legal World News |
2008/04/09 08:53
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pLawyers Kym Worthy and Dan Webb are a pair of ferocious competitors in the courtroom. That's both good news and bad news for the mayor./ppWorthy, a prosecutor, and Webb, a defense attorney, have emerged as the legal faces of a text-messaging sex scandal that has embroiled Mayor Kwame Kilpatrick and his former top aide./ppWorthy, the first black attorney and first woman to head the Wayne County prosecutor's office, is seeking to prove Kilpatrick lied under oath. Webb is a high-priced litigation gunslinger aiming to keep the mayor out of prison./ppSlight of build, the 62-year-old Webb is considered a legal heavyweight in the courtroom, ranked among the nation's top trial lawyers by several publications./ppI hate failing. That's more of my driving force, why I work as hard as I do, he said last week while preparing other cases in San Francisco, Las Vegas and St. Louis./ppA big part of Worthy's success is her focus. That's what she preaches to the team of assistant prosecutors preparing for Kilpatrick's next court hearing./ppI spent most of my weekends and holidays here in the library, said Worthy, 52, looking back at her career. I tried to cross every 'T' and dot every 'I.' Too many things can go wrong in a trial./ppKilpatrick has been besieged since late January, when the Detroit Free Press published excerpts of sexually explicit and embarrassing text messages left on the city-issued pager of his then-Chief of Staff Christine Beatty./ppThe messages contradict testimony both gave last summer during a whistle-blowers' lawsuit when Kilpatrick and Beatty denied having a romantic relationship in 2002 and 2003. Kilpatrick also is accused of lying under oath about his role in the firing of a top police official./ppThe text messages also were referenced in a confidential agreement that led to the city settling that lawsuit and a second whistle-blowers' suit for $8.4 million./ppAfter a two-month investigation, Worthy filed multiple felony perjury, misconduct and obstruction of justice charges against Kilpatrick and Beatty. Convictions could send each to prison, and force Kilpatrick from his perch as Detroit mayor./ppThe embattled mayor is the latest of Webb's high-profile clients. He's represented tobacco giant Philip Morris on racketeering charges and computer giant Microsoft in an antitrust trial./ppFormer U.S. Attorney Patrick Collins crossed swords with Webb in a six-month corruption trial of former Illinois Gov. George Ryan, who is serving a prison sentence on a fraud and racketeering conviction./ppDan is a tenacious competitor, said Collins, now a defense attorney. He's a competition junkie, and I think he loves the action and he's very good at his craft./ppWorthy, who moved often while growing up with her military father and earned her law degree from the University of Notre Dame, pursued a law career because of what she didn't see./ppI can only say my father told me I could do anything I wanted, she said. There were no lawyers in my family. When I watched TV, I didn't see any African American lawyers. They didn't even have black police officers on TV back then./ppAfter two years as a contract worker for the Wayne County prosecutor's office, she was hired on as an assistant prosecutor in 1986. In 1992, an unemployed black steel worker named Malice Green was beaten to death during a confrontation with several white Detroit police officers./ppThe case put the young, black, female assistant prosecutor on the nation's stage and in the daily glare of cable television. She won second-degree murder convictions against two of the officers./ppShe is highly skilled and she could work the courtroom. She prepares as well, if not better, than anybody, Detroit defense attorney Carole Stanyar said./ppWebb also is no stranger to the spotlight. He's cross-examined former President Ronald Reagan and won a conviction against U.S. Navy Admiral John Poindexter in the Iran-Contra affair./ppAlthough he would have preferred playing second base for the St. Louis Cardinals, Webb said he discovered his love for law growing up in the small farming community of Bushnell, Ill., about 170 miles southwest of Chicago./ppSomewhere before I got out of high school, I decided I was going to be a trial lawyer come hell or high water, said Webb, who took law classes at night at Loyola University while holding full-time banking jobs./ppI didn't have any money. I was broke, Webb joked. That's why I worked my way through law school. I knew I didn't want to do banking work.
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Discovery Across Borders
Legal World News |
2008/04/09 08:51
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pYou are a United States company but a global citizen. Your shares are traded on U.S. exchanges. You have sales forces in Europe, manufacturing in Asia, and your eyes on the Middle East. It used to be that only the largest companies had a broad international reach. Now, it seems corporations of all sizes, in order to be competitive, must carefully consider overseas operations. While technology has made transition into the new global economy easier, it also creates special risks./ppImagine the following: You wake up one morning to a flurry of activity in France, where regulators have raided your main sales office seeking documents and information regarding alleged kickbacks to a key customer. You are asked to turn over hard drives, backup tapes and access to your servers. A reporter from Le Monde picks up the story, and by the time the U.S. opens for business there is a story on WSJ.com. Your stock price falls throughout the day; by the end of the week a leading class action law firm has announced the filing of a securities fraud case. The Securities and Exchange Commission (SEC) asks for information about your global sales practices and accounting policies.
Suddenly, you are faced with a swirl of information demands and document preservation obligations. French regulators want to cart your computers away-but the SEC wants the information they contain. American plaintiffs' lawyers will want it as well, and there's no telling whether additional regulators or litigants will become involved./ppIn today's business, all information is electronic. Paper may have been heavy, hard to store, and time-consuming to review-but it was a tangible thing, easy to inventory, and it tended to be limited in volume, even in the largest cases. More importantly, identifying relevant documents for preservation or production was relatively easy: Either a document was in your possession or custody, or it wasn't, and if it wasn't, either you controlled the people who had it, or you didn't. Electronic communication has led to exponential increases in the amount of data that companies store, and the locations where the information is stored: desktops, laptops, servers, PDAs, BlackBerries™, smart phones, optical drives, thumb drives, iPods™ and more./ppUnless you spend a great deal of time talking shop with your IT managers, you probably don't know how many e-mail or file servers your company uses. You probably don't know exactly where your electronic documents are stored, what happens to your e-mails after you delete them, or how frequently your company's servers are backed up to tape. Are you prepared for information discovery across borders? Do you understand how to preserve, collect and analyze data in a way that will meet the requirements of foreign as well as U.S. courts and regulatory bodies? Are you sure?/ppIf you operate internationally, you must be cognizant not only of a patchwork of laws and regulations-many of which could conflict-but also of cultural differences that affect your response to requests for electronic information./ppThe initial stage in any litigation or regulatory effort is to ensure preservation of relevant materials. But an international scope makes this far more complicated than just issuing a directive to employees to stop deleting e-mails or drafted documents. You need to know where information is located, how it is stored, when it is backed up, and whether backups are rotated or destroyed. Automatic deletion or rotation policies mean that if you do nothing, you may lose files that are subject to a regulatory or litigation request./ppData collection also is far more complicated in an international context than in a purely domestic one. Local laws may prohibit an employer from searching employee e-mail files. As a cultural matter, most Americans are accustomed to the idea that an employee's computer and e-mail account belong to the employer. Outside of the U.S., the cultural understanding is frequently just the opposite: An employee's computer and e-mail account are considered private, and it may be a criminal offense to invade that privacy. Collection of data outside the U.S. may be seen as coercion by an employer, and it may lead to labor union grievances or complaints./ppOnce the information is collected, getting it reviewed and produced to a U.S. regulator or litigant is also no simple matter. Data privacy and blocking statutes in Europe, Asia and South America may forbid the transfer of personal data outside of their borders to an unprotected jurisdiction like the United States-and personal data include names, e-mail addresses and office phone numbers. Indeed, special procedures may be required before individuals outside a company-including the company's outside counsel-may review the data. And local laws may dictate that only data specifically responsive to a request may be exported, requiring counsel to review materials locally rather than shipping them to the U.S. to one centralized location, as is normally done in U.S. litigation/ppDo not expect, however, any sympathy from U.S. regulators or plaintiffs' lawyers. U.S. regulators are skeptical of data protection laws and may take the view that international companies hide behind them to avoid cooperating with the regulators' investigations. U.S. courts may not be more understanding. The Supreme Court has held that U.S. discovery rules presumptively apply in civil litigation involving an international company, even if producing data in response to a discovery request would be unlawful in the international company's host jurisdiction.
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